The Office of Public Counsel for Victims (OPCV), representing bloody drug war victims, has petitioned the International Criminal Court (ICC) to dismiss a motion filed by the lawyers of former president Rodrigo Duterte seeking to junk the single charge of crimes against humanity against him on the basis of “lack of jurisdiction.”
OPCV’s principal counsel, Paolina Massidda, detailed in a 27-page document dated 9 June the potential hazards if Duterte’s defense succeeds, including, among others, the possibility of terminating the proceeding.
“[Victims] expressed the view that if the court chooses to uphold the overly restrictive reading of the Statute proposed by the defence, and the suspect is returned to the Philippines as a result, they will have no judicial recourse and no hope of pursuing justice,” Massidda said.
“Moreover, they indicated that they could face threats from the suspect and his supporters,” the document further read.
Duterte’s lawyers, Nicholas Kaufman and Dov Jacobs, earlier sought the dismissal of his case, arguing that the ICC no longer holds jurisdiction over the former president, citing the Philippines’ withdrawal from the Rome Statute in March 2019.
They contended that the continuation of the proceeding has “no basis” and therefore called for the immediate release of Duterte from the ICC’s custody.
The OPCV, representing alleged extrajudicial killing victims pending their common legal representatives, countered that the withdrawal has no legal effect on the ICC’s exercise of jurisdiction, as the preliminary investigation into Duterte’s anti-drug campaign had already commenced before the withdrawal became effective.
In an observation filed in early May, Kaufman insisted that Article 127 of the Statute, which allows the ICC to continue cases initiated before a withdrawal takes effect, does not apply in Duterte’s case.
But Massidda maintained that the provision is “crystal clear” and that the ICC’s jurisdiction is well-established. She warned that any reinterpretation of the provision would defeat the Statute’s purpose, setting a dangerous precedent that would allow withdrawn countries to impede the ICC’s jurisdiction.
“If such were the case, the court could never exercise its jurisdiction… In other words, most serious crimes of concern to the international community as a whole will go unpunished and the effective prosecution of atrocities committed against countless victims will never materialise,” the principal counsel pointed out.
She emphasized that it would erode the ICC’s efforts to hold perpetrators of crimes against humanity accountable and put an end to impunity, resulting in a failed guarantee of lasting respect and the enforcement of international justice.
Massidda further argued that the Philippines’ voluntary surrender of Duterte to the ICC, despite six years after formally terminating its membership. This merely demonstrates that the country still considers itself bound to the Rome Statute, the treaty that established the ICC.
“This further provides an irrefutable proof to the effect that the Republic of the Philippines does consider that the court still can exercise its jurisdiction over the crimes committed in its territory as described in the warrant of arrest against Mr. Duterte, pursuant to Articles 12 and 127 of the Statute,” she stressed.
The 80-year-old Duterte has been detained at Scheveningen Prison in The Hague, Netherlands, since his arrest on 11 March in Manila and will remain there while awaiting the confirmation of his charges on 23 September. He is facing a single count of crimes against humanity over killings recorded between 1 November 2011 and 16 March 2019, spanning his time as mayor of Davao City and as president.
Kaufman confirmed that the application for Duterte’s temporary release is already in the works.
Local lawyers of the drug war victims, however, vowed to block any attempt to release Duterte, asserting that keeping him in ICC detention is necessary to ensure that he will not pose a threat to the victims and witnesses of his notorious war on drugs.